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[2022] ACAT 45
ACT Civil and Administrative Tribunal
2022-05-31
Original judgment source is linked above.
OGILVIE v EVOENERGY (Energy & Water) [2022] ACAT 45
Catchwords: ENERGY & WATER - where a low voltage electricity cable was buried outside the electricity supply easement on a residential block in about 1974 by a predecessor of Evoenergy - where the applicant purchased the block in about 2017 and commenced to install an in-ground swimming pool without first having the design approved by Evoenergy - where swimming pool had to be relocated and other design changes made due to proximity to buried low voltage cable - where applicant sought orders requiring Evoenergy to relocate the cable inside the easement and compensation for additional costs incurred in constructing the swimming pool - where Evoenergy authorised by statute to keep the cable where it is - where applicant given multiple opportunities to formulate grounds of claim - application dismissed on the grounds that it lacks substance and giving the applicant a further opportunity to formulate the grounds of claim would be inconsistent with the tribunal principles in section 7 of the ACAT Act
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 32
ACTEW/AGL Partnership Facilitation Act 2000 ss 5, 8, 9, 10, 10, 11
Australian Capital Territory (Self-Government) Act 1988 (Cth) s 34(4)
Australian Capital Territory Electricity Supply Act 1962 (Cth) (repealed) ss 5, 17, 18
Electricity and Water Act 1988 (repealed)
Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (repealed) s 4
Electricity and Water Ordinance 1988 (Cth) (repealed) s 84
National Energy Retail Law
Subordinate
Legislation cited: Notifiable Instrument NI2000-220
Notifiable Instrument NI 2000-221
Notifiable Instrument NI2000-224
Notifiable Instrument NI2000-226
Notifiable Instrument NI2000-22E
Cases cited: Blazey v Icon Distribution Investments Ltd and Jemena Networks (ACT) Pty Ltd t/as ACTEWAGL Distribution [2018] ACAT 10
1. Leave to amend the application in accordance with the document titled 'Submissions of the Applicant' filed pursuant to orders made on 15 February 2022 is refused.
1. On 20 April 2022, I refused leave for the applicant to amend his claim against Evoenergy and otherwise dismissed the application.
2. The proposed amended claim states as follows:[1]
1. (a) The respondents relocate the electrical infrastructure into the allotted "easement" (both hereafterdefined);
(b) The respondents pay the applicant an amount (to be assessed) for damages/Rental for
- a damages application
- a nuisance application
- a trespass application
- an application stated to be a civil dispute application in an authorising law
- a common boundaries determination
- a debt application - invoices to be issued
PA amount to not exceed the sum of $25,000.00 P.A.
2. The applicant is one of the Crown Lessees of Block 26 Section 41 MacGregor ("theblock"), having purchased it during or about 2017.
3. The block was and is subject to an easement ("the easement") for electrical supply forthe full length of and within its eastern boundary, and being 1.5 metres wide.
4. Upon purchase of the block in 2017, and as part of the purchase process prescribed bythe Civil Law (Sale of Residential Property) Act, the applicant obtained a Lease Conveyancing Enquiry and a building compliance report in respect of the block. Noneof these documents disclosed or warned the applicant of the possibility of the wires being partly outside the easement. - EVO has not disclosed they have assets outside the allotted easement.
5. The applicant sought approval upon which the applicants proposed to construct a pool.
6. The current location of the wires prevents the completion of the applicant's pool construction in the preferred position and by not allowing sufficient room for a small building to house a toilet, shower
7. The non-compliance by EVO energy to comply and abide by requirements of ACT and regulation.
Such orders are sought under ACT,s and regulation or code but not limited to the below
3. I dismissed the claim because it lacks substance in the sense required by section 32(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and because, considering the background and procedural history of the matter, I am satisfied that the applicant has been afforded natural justice and procedural fairness and that giving the applicant a further opportunity to attempt to formulate the grounds of claim would be inconsistent with the tribunal principles in section 7 of the ACAT Act. Section 7 states:
In exercising its functions under this Act, the tribunal must -
(a) seek to ensure the procedures of the tribunal -
(i) are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(ii) are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceedings; and
(b) observe natural justice and procedural fairness.
4. I said that I will provide written reasons for my decision later. These are my reasons.
5. The applicant, Mr Ogilvie, is one of the Crown lessees of a block in MacGregor, which was purchased in or about 2017. The block includes a 1.5 metre wide easement for electrical supply extending for the full length of the eastern side boundary.
6. Mr Ogilvie decided to install an in-ground swimming pool in his back yard. Excavation for the pool commenced without first obtaining approval from Evoenergy that the pool design complies with Evoenergy's Service and Installation Rules. These require that the edge of an in-ground pool be located a minimum of 3.5m from any underground electrical cable that is not installed in waterproof conduit. The original pool design placed the pool 2.5m from the eastern side boundary. Evoenergy subsequently refused Mr Ogilvie's application for approval of the pool design.
7. Mr Ogilvie made a complaint to Evoenergy by telephone on 27 May 2021. The Customer Resolutions department advised the outcome of the complaint by email on 1 June 2021. Relevantly, it said:
Investigations confirm the proposed pool installation design at 59 Florey Drive has been failed for not meeting the 3.5m clearance to underground cables not in conduit. As you know, there are two low voltage mains cables that run inside the Proponents eastern side boundary. These cables run from Substation 3406, located on the verge at the front of your property, to pole 36791, located just over the rear boundary in the adjoining neighbour's property. Although the pool has been assessed as meeting the clearance requirements for the Substation earthing at the front of the property, I understand that the existing design does not meet the required 3.5m clearance to the existing low voltage cables adjacent the eastern side property boundary. Evoenergy note you are in the process of converting the existing overhead service supplying the property to an underground service. Please note, as per Evoenergy Drawing no 3832 - 020, Note (7), underground cables are not permitted within 3.5meters [sic] of the edge of an in ground swimming pool or spa.
If you wish to confirm the exact location of Evoenergy's easement, you can do so by submitting a Dial Before You Dig application, with the request of an on-site location to determine the exact location of these cables...
Evoenergy's existing electricity easement is marked on the territory plan. During discussions on Thursday afternoon, you confirm that you purchased this property (approximately) four years ago, meaning you purchased the property burdened with Evoenergy's network. Records confirm the existing network installation predates the year 2000. This means that, in accordance with section 10(7) of the ACTEW/AGL Partnership Facilitation Act 2000 (ACT), Evoenergy is entitled to keep its network in place. Considering these facts, if you wish to have the network moved to a more convenient position, you would be required to bear all costs in doing so, which would also include any necessary development application. I note that this option is subject to there being a technical solution for the new network, which - based on a high level assessment of the existing infrastructure - may not be possible.
8. On 1 June 2021, Mr Ogilvie lodged an Energy & Water complaint through the ACAT website, where he stated:
I have had my plans for my pool not approved and after talking to EVO I have confirmed they measure the distance needed for clearance on the pool from the power wires not the actual easement so I requested them to move their wires as they are not in the easement they are 600mm into my property thus making it impossible to fit my pool where I have excavated the property to put the pool. I was told by the plans inspector GOOD LUCK with making us move the cables. I then reported that behaviour and made a complaint offering EVO an option of giving me an exemption - they denied ever giving any exemptions and I was told no mitigation could be done except move the cables at my expense if they allowed it. I was also told they were protected by the partnership facilitation act 2000 [sic] and they could have their assets wherever they ;like [sic].
9. He described the result he wanted from the complaint as follows:
I think I need to be compensated monetarily as they have refused to issue an exemption for the pool based on the infrastructure being on my land and not wholly in the easement. I have now had to re-excavate my yard - change my building designs and pool plans and yard design. This has caused some severe emotional pain and is causing severe depression from some family members who have gone without many things to make this pool happen. Now we most likely won't have the pool or yards finished in time for summer or at all pending re-applying for moving the pool to somewhere we don't/didn't want it. We are seeking financial compensation for pain and suffering/loss of lifestyle/additional costs in relocating the pool and designs for the patio and yard. We are seeking $220k for loss and pain and suffering.
10. On 2 June 2021, Evoenergy attended Mr Ogilvie's property to determine the location of the underground power cables. It was determined that the closest cable was 1.85m inside the eastern side boundary - i.e. it lay outside the easement. Mr Ogilvie was advised that the proposed pool would need to be located 3.5m from the cable.
11. Evoenergy responded to the complaint by email to the ACAT on 18 June 2021. Relevantly, it said:
Evoenergy's existing electricity easement is marked on the territory's deposited plan. Records confirm the existing network installation predates the year 2000. In accordance with section 10(7) of the ACTEW/AGL Partnership Facilitation Act 2000 (ACT), Evoenergy is entitled to keep its network in place in its current location.
Given this information, Evoenergy does not see cause to meet Mr Ogilvie's desired outcome. Evoenergy is not liable for any loss Mr Ogilvie has incurred in beginning works on his pool installation without Evoenergy's approval of his proposed pool design in relation to the network location.
12. On 15 July 2021, Evoenergy wrote to the ACAT confirming that the two low-voltage cables located inside the eastern side boundary were installed in 1976 and were direct buried - i.e. not in conduit - and that no changes had been made to the cables since then. The closest cable to the proposed location of the pool is 1.85m inside the eastern side boundary. Evoenergy again reiterated that it was entitled to keep its network in place in accordance with section 10(7) of the ACTEW/AGL Partnership Facilitation Act 2000 (PF Act), regardless of the circumstances surrounding the installation of the network subject to the complaint some 45 years earlier.
13. On 16 July 2021, the ACAT wrote to Mr Ogilvie advising that any claim above $25,000 was outside the tribunal's jurisdiction. If he wished the matter to proceed in the tribunal it was necessary for him to agree to abandon any claim in excess of $25,000.
14. On 9 August 2021, Mr Ogilvie advised the ACAT that he would proceed with the claims for rectification work and would not include the claim for pain and suffering.
15. On 17 August 2021, the application was listed for conference on 8 September 2021.
16. The parties did not reach agreement at the conference. As a result Senior Member Sutherland made orders for a timetable to prepare the matter for hearing. Order 1 required the applicant to give to the respondent and the tribunal by 14 October 2021:
(a) a written statement of any witness on whose evidence he relies;
(b) any other material he intends to rely upon at the hearing; and
(c) a written submission setting out what he says are the facts of the case, and explaining what is the correct and preferable decision of the tribunal upon those facts.
17. The timetable was varied by orders made on 13 October, 28 October and 15 November 2021. The last amendment extended the time for the applicant to comply with order 1 to 22 November 2021 and made consequential changes to the rest of the timetable.
18. On 11 November 2021, the solicitor for the applicant, Mr Chris Donohue, filed a witness statement by Mr Ogilvie dated the same day.
19. On 22 November 2021, Mr Donohue filed a written submission setting out the orders sought and the facts on which the claim for relief was based. The principal claims for relief were for orders that Evoenergy relocate into the easement the original buried electrical cable and the house wires (formerly overhead wires providing electricity to the house that the applicant relocated underground on 10 March 2021 in accordance with conditions prescribed by Evoenergy).
20. The grounds for the claim were described as follows:
4. The applicant is one of the Crown Lessees of the block having purchased it during or about 2017.
5. The wires were installed in their current position at some time before 1974 by the predecessors of the respondents, or under the control and supervision of the predecessors of the respondents, and part of the wire was installed outside the easement allocated for the positioning the wire. The positioning outside the easement was done negligently or carelessly by or under the control of the predecessors of the respondents.
6. As the wires were installed underground, their location was not discoverable by visual or ordinary inspection. As such they were a latent defect in the block.
7. It was and is a reasonable expectation of all consecutive Crown Lessees of the block (including the applicant) that the predecessors of the respondents did carefully and properly carry out the installation so that the wires were wholly within the easement. The respondents are under a duty to ensure that the installation was carried out correctly, and to rectify if it was not.
8. The respondents assumed the rights and obligations of their predecessors in relation to the installation of the wires in the easement, and in particular assume the liabilities of their predecessors in relation to the careless and negligent installation of part of the wires outside the easement.
9. Upon purchase of the block in 2017, and as part of the purchase process prescribed by the Civil Law (Sale of Residential Property) Act, the applicant obtained a Lease Conveyancing Enquiry and a building compliance report in respect of the block. None of these documents disclosed or warned the applicant of the possibility of the wire being partly outside the easement.
10. The current location of the wires prevents the completion of the applicant's pool construction project by not allowing sufficient room for a small building to house a toilet, shower and spa.
21. Although the ACAT is not a jurisdiction where the rules of pleading apply, it nevertheless is a fundamental requirement of procedural fairness that an applicant must identify, without undue formality:
(a) the material facts said to give rise to the claim, with sufficient details of the material facts to enable the respondent to understand the factual basis of the claim and decide how to respond to it;
(b) the legal basis of the claim; and
(c) otherwise than in an obvious case, the legislation under which the applicant says the ACAT has power to hear and determine the claim and grant the relief sought by the applicant.
22. The grounds reproduced above fail to meet that minimum standard in several critical respects, including (without attempting to be exhaustive) that:
(a) the identity of the "predecessor of the respondent" said to have been negligent in installing the cable outside the easement, or in controlling and supervising the installation of the cable, is not identified;
(b) the scope of the duty of care allegedly owed by the respondent's predecessor to the then Crown lessee of the block (assuming the block existed at the time - i.e. that the electrical cable was installed after the block was subdivided and the easement was established) and to the Crown lessee's successors in title, and the facts alleged to give rise to the duty, are not identified;
(c) the scope of the duty allegedly owed by the respondent to ensure that the installation carried out by its predecessor was correct, and to rectify it if it was not, and the facts alleged to give rise to the duty, are not identified;
(d) the factual and legal basis upon which it is alleged that the respondent assumed any liability its predecessor may have had in relation to the allegedly negligent installation of the electric cables, is not identified;
(e) insofar as the claim appears to be founded at least in part on civil liability for damages in tort, no consideration has been given to the requirements of chapter 4 (Negligence) and chapter 8 (Liability of public and other authorities) of the Civil Law (Wrongs) Act 2002; and
(f) insofar as the relief sought includes an order requiring Evoenergy to relocate the electrical cables, the statutory source of the tribunal's power to make such an order is not identified.
23. On 24 November 2021, Evoenergy requested that the tribunal list the matter for directions to enable it to raise a jurisdictional issue. In essence, Evoenergy said that the applicant had failed to provide any material to show that the ACAT had jurisdiction to hear the matter under section 172 of the Utilities Act 2000 (Utilities Act). Evoenergy said it had raised the jurisdictional issue at the conference on 8 September 2021 and it remained Evoenergy's position that the tribunal lacked jurisdiction under the Utilities Act to determine the matter.
24. The matter came before me for directions on 29 November 2011. Mr Donohue appeared for the applicant. Mr Michael Hope, Senior Legal Counsel for Evoenergy, appeared for the respondent. The jurisdictional issue was discussed as were the deficiencies in the applicant's statement of the grounds of his claim. I made orders, including that:
(a) By 6 December 2021, the applicant must file and serve a points of claim setting out the material facts on which the applicant relies, the relief sought under the Utilities Act 2000 and the jurisdictional basis of the claim(s) and the relief sought.
(b) By 13 December 2021, the respondent must file and serve a points of defence.
25. The orders included a note to the effect that the tribunal expected the parties to cooperate in relation to the filing and service of their evidence to enable the application to be heard in the week commencing 17 January 2022, or in any event, by 31 January 2022 at the latest.
26. On 6 December 2021, Mr Donohue on behalf of the applicant submitted a document titled 'Submissions by Applicant', which I understand was intended to be the applicant's points of claim. I reproduce the document in full below:
1. (a) The respondent relocate the "house wire" into the "easement" (both hereafter defined);
Or if the ACAT does not order (i) then alternatively:
(b) The respondents pay the applicant an amount (to be assessed) for damages for breach of contract. Such amount to not exceed the sum of $25,000.00.
2. The applicant is one of the Crown Lessees of Block 26 Section 41 MacGregor ("the block and quote), having purchased it during or about 2017.
3. The block was and is subject to an easement ("the easement") for electrical supply for the full length of and within its eastern boundary, and being 1.5 metres wide.
4. At some time before 1974 the predecessors of the respondents (or their servants and agents under the control and supervision of the predecessors of the respondents) installed wires ("the wires") along or near the eastern boundary of the block.
5. Part of the wires was installed outside the easement. The positioning outside the easement was done negligently or carelessly by or under the control of the predecessors of the respondents.
6. As the wires were installed underground, their location was not discoverable by visual or ordinary inspection. As such they were a latent defect in the block.
7. It was and is a reasonable expectation of all the consecutive Crown Lessees of the block (including the applicant) that the predecessors of the respondents did carefully and properly carry out the installation so that the wires were wholly within the easement.
8. The respondents assumed the rights and obligations of their predecessors in relation to the installation of the wires in the easement, and in particular assumed the liabilities of their predecessors in relation to the careless and negligent installation of part of the wires outside the easement.
9. Upon purchase of the block in 2017, and as part of the purchase process prescribed by the Civil Law (Sale of Residential Property) Act_, the applicant obtained a Lease Conveyancing Enquiry and a building compliance report in respect of the block. None of these documents disclosed or warned the applicant of the possibility of the wires being partly outside the easement._
10. The applicant sought to relocate overhead electricity wires ("the house wires") so that they would be underground and clear of any area of the block upon which the applicant proposed to construct a pool.
11. On or about 9 December 2020, the applicant sought from the respondent their:
(a) approval;
(b) specification; and
(c) agreement
12. On or about 14 December 2020, by a written completion of a "request for electricity service marking" the respondent's approved, specified and agreed to the relocation.
(a) the applicant was to provide a trench and conduit in a location as specified;
(b) the location specified was within the easement;
(c) the respondents would install the house wires in the easement and remove the overhead house wires;
(d) the applicant was to pay the respondents the sum of $2020.93.
13. The applicant paid the respondents the said sum on or about 18 March 2021.
14. On or about 10 March 2021, during the carrying out of the trenching work, the applicant discovered that the wires were partially outside the easement and into the block by about 380 millimetres.
15. The respondents specified that the underground house wire was not permitted to cross over the wires, that the respondent would not relocate the wires, and that the underground house wires were therefore required to be placed outside the easement and into the block.
16. The underground house wires were installed by the respondents outside the easement in breach of their agreement to install it within the easement.
17. The current location of the house wires prevents the completion of the applicant's pool construction project by not allowing sufficient room for a small building to house a toilet, shower and spa, and the applicant claims from the respondents the cost of repositioning the house wires.
Utilities Act 2000 and Jurisdiction
18. The agreement referred to in paragraphs 11, 12 and 13 was either:
(a) A consumer contract within the meaning of the Utilities Act 2000 in which case Section 178 of that Act gives the ACAT power to give directions to the respondents that it considers necessary requiring the respondents to remedy the contravention of the consumer contract. Jurisdiction is given under all or one of items 1, 5 or 6 of the Table at Section 172 of the Utilities Act 2000.
(b) A contract within the general law upon which the ACAT is entitled to adjudicate as a civil dispute pursuant to section 22 of the ACT Civil and Administrative Tribunal Act 2008_._
27. On 13 December 2021, Evoenergy filed points of defence, noting in paragraph 1 that the grounds of the claim were now entirely different to the grounds filed on 22 November 2021. The following paragraphs of the points of defence stated:
2. The crux of the original claim was that the Respondent was obliged to relocate part of its underground low-voltage network as it was not located in an easement, and (in the Applicant's opinion) had to be located in that easement. Having been alerted to the fact that this claim was unlikely to succeed, and in any event the Tribunal likely had no jurisdiction to hear it, the Applicant reformulated his claim.
3. The crux of the reformulated claim is that the Respondent, in providing basic connection services to the Applicant, was obliged to install its underground service connection in the easement, which would also require the Respondent to relocate part of its underground low voltage electricity network into the easement. However, the Applicant's submissions of 6 December 2021 do not articulate the contractual basis for this claim, but merely assert that there was an obligation to do so.
4. There are no facts to support the Applicant's reformulated claim, it cannot be sustained, and should be dismissed.
28. The point that the submissions dated 6 December 2021 fail to articulate a contractual basis for the alleged requirement to relocate the existing low voltage cable into the easement, is well made.
29. The points of defence pleaded Evoenergy's substantive response to the alleged facts. In essence, Evoenergy's case is that it placed an underground service cable in a trench dug and conduit laid by the applicant. There was no contractual obligation requiring it to relocate the existing low voltage cable so that the service cable could be located inside the easement. On the issue of jurisdiction, the points of claim stated:
22. If this matter is limited to a claim for a breach of a customer contract as defined in the Act, which includes a customer connection contract, then the Tribunal has jurisdiction to hear the matter. The Applicant concedes that the Contract is a customer connection contract. However, as submitted, the Respondent has not breached the Contract.
23. Given the terms of the Contract are set by the Australian Energy Regulator, it is not possible to infer other terms into it, such as a purported promise to relocate the underground low-voltage network. This is because the Contract only obliges the Respondent to provide basic connection services, which does not include the relocation of the low-voltage underground cable.
24. If there was some promise to relocate the low-voltage underground network, this would have been under a separate agreement. This agreement would not be a customer contract as defined in the Act, and the Tribunal would have no jurisdiction to determine any breach of it under the Act.
30. The matter came before me for directions on 17 December 2021. Mr Donohue appeared for the applicant and Mr Hope appeared for the respondent. After hearing from the parties I made the following orders:
(1) By 28 January 2022, the applicant must file and serve all the evidence of whatever kind on which the applicant intends to rely in support of his claim.
(2) By 28 January 2022, the applicant must file and serve a statement of the material facts on which the allegations in paragraph 8 of the applicant's points of claim (presently headed 'Submissions by Applicant', and dated 6 December 2021) are based, together with adequate particulars of the material facts.
(3) In lieu of compliance with order (2), by 28 January 2022, the applicant must file and serve submissions, not exceeding 2 pages in length, why paragraph 8 of the applicant's points of claim should not be struck out under section 32(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 as lacking in substance.
(4) By 4 February 2022, the respondent must file and serve all the evidence of whatever kind on which the respondent intends to rely in opposition to the applicant's claim.
(5) The application is listed for hearing (in person) on 15 February 22, commencing at 10 a.m.
31. One of the matters discussed at the directions hearing was the formation of customer connection contracts under the National Energy Retail Law in the ACT. Mr Hope offered to provide a document to the applicant and the tribunal explaining the legislation that governs the making of a customer contract for a new connection, or the alteration of an existing connection, where a 'connection' is a physical link between a distribution system and a customer's premises to allow the flow of energy. Mr Hope provided such a document later in the day on 17 December 2021.[13] The point of Mr Hope's analysis is that there is no scope to imply a term into a customer connection contract that would require Evoenergy to relocate the existing electrical cable into the easement.
32. On 19 January 2022, Mr Ogilvie wrote to the tribunal advising that he was no longer legally represented and requesting a 60-day extension of time "to familiarise myself with my obligations for ACAT and my evidence obligations".
33. On 24 January 2022, Evoenergy wrote to the tribunal objecting to the extension of time, noting that the matter had been on foot for some time and the applicant had been granted several extensions of time. A further extension would not be consistent with the tribunal's obligation under section 7 of the ACAT Act to ensure that its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice.
34. On 27 January 2022, I made orders in chambers vacating the hearing on 15 February 2022 and instead listing the matter for directions on that date. I also ordered that:
The applicant must take all necessary steps and make all necessary enquiries to enable him to inform the Tribunal and the respondent at the directions hearing on 15 February 2022:
(a) whether the applicant intends to proceed with the application and, if so, on what grounds; and
(b) if the applicant intends to proceed, the date by which the applicant will be ready for a hearing.
35. On 15 February 2022, the matter came before me again for directions. Mr Ogilvie appeared in person. Mr Hope appeared for Evoenergy. Mr Ogilvie advised that he intended to proceed but required additional time to formulate the grounds of his claim. Over Mr Hope's objections, I granted Mr Ogilvie until 12 April 2022 to give to the Tribunal and the respondent a draft points of claim setting out the orders he seeks and the contentions of fact and the law which he says entitles him to such orders. I listed the matter for directions on 20 April 2022. The formal orders included the following note:
The Tribunal notes that there will be no further extensions of time afforded to the applicant to formulate his claim. On the next occasion the Tribunal expects the respondent to be in a position to advise whether leave to amend the claim in accordance with the draft points of claim is opposed and, if so, the grounds of opposition.
36. The matter came before me for directions on 20 April 2022. Mr Ogilvie appeared in person; Mr Hope appeared for Evoenergy. Mr Hope formally opposed leave being granted, in essence because the proposed grounds of claim disclose no cause of action against Evoenergy.
37. I have reproduced the applicant's proposed grounds of claim at the beginning of these reasons. The grounds are completely different to the reformulated grounds in Mr Donohue's submissions dated 6 December 2021. The crux of the claim now appears to relate to a failure by Evoenergy to "comply or abide by" certain acts and regulations.
38. The facts alleged in paragraphs 2 to 6 of the draft grounds are not contentious. On their own they do not give rise to any liability on the part of Evoenergy. Paragraph 7 is devoid of any factual context. The tribunal and the respondent are left to speculate about the following matters:
(a) What are the legislative requirements relevant to the circumstances of Mr Ogilvie's claim?
(b) How do they apply to Evoenergy?
(c) In what respects did Evoenergy fail to comply or abide by those requirements?
(d) How does that translate into an entitlement to damages and/or a requirement that Evoenergy relocate the electrical cables?
(e) Where does the tribunal obtain the power to grant the relief Mr Ogilvie seeks?
39. Self-evidently, the grounds as presently framed disclose no cause of action against Evoenergy. Mr Ogilvie made it clear at the directions hearing that he thinks otherwise. Unfortunately, he is wrong as the following analysis shows.
40. Assuming the low voltage cable was installed somewhere between around 1974 and 1976, at that time the supply of electricity in the ACT was governed by the Australian Capital Territory Electricity Supply Act 1962 (Cth). Section 5 established an authority of the Commonwealth named the Australian Capital Territory Electric Authority (ACTEA). Section 17 provided that the functions of the authority included to supply electricity in the Territory. Pursuant to section 18, the authority was given power to transmit and reticulate electricity in the Territory. Whether the cable was installed by ACTEA itself (i.e. by its servants or agents) or by independent contractors engaged by ACTEA for that purpose, is not known.
41. On 1 July 1988, the Australian Capital Territory Electricity Supply Act 1962 (Cth) was replaced by the Electricity and Water Ordinance 1988 (Cth) and the ACTEA was replaced by the Australian Capital Territory Electricity and Water Authority (ACTEWA). Pursuant to section 84(b), on the commencement date ACTEWA became liable to pay or discharge any debts, liabilities or obligations of the former authority that existed immediately before that date. On 11 May 1989, the ordinance became the Electricity and Water Act 1988 pursuant to section 34(4) of the Australian Capital Territory (Self-Government) Act 1988 (Cth).
42. On 28 June 1995, pursuant to section 4 of the Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (repealed) the rights and liabilities of ACTEWA, including ownership of the electricity network, was transferred to ACTEW Corporation Ltd (ACTEW).
43. On 6 April 2000, the PF Act commenced. Section 5, provided that the object of the Act was to facilitate the implementation of any future agreement between ACTEW and AGL to form a joint venture by way of partnerships between their respective subsidiaries for the provision of electricity and gas, and for the undertaking of certain water and sewerage operation and maintenance activities.
44. Part 2 of the PF Act is headed 'Rights Concerning Certain Network Facilities'. Section 8 includes the following definitions:
network facility means any part of the infrastructure of an electricity, gas, water or sewerage network -
(a) affixed to non-ACTEW or non-AGL land; and
(b) used, or formerly used, by ACTEW, AGL or a subsidiary of either of them in the course of operating such a network.
non-ACTEW land means any land in the Territory not owned by ACTEW or a subsidiary of ACTEW, other than national land.
non-AGL land means any land in the Territory not owned by AGL or a subsidiary of AGL, other than national land.
utility service means the operation of, or connection to, and electricity or a gas, water or sewerage network.
The purpose of this Part is to remove uncertainty about the ownership of certain network facilities that are -
(a) used, or for use, by ACTEW, AGL or a subsidiary of either of them in providing a utility service; and
(b) treated by the Territory and the corporation that it uses them or for the use of which the facilities are available as being owned by the Corporation.
46. Section 10(1) permits the Minister to make declarations that the section applies to stated network facilities.
A corporation in which a facility has vested has, by force of this section, the following rights in relation to a network facility to which this section applies:
(a) to have the facility (including any lines, pipes, equipment and any other thing ancillary to any other part of the facility) remain on, under or over the land for the provision of utility services;
(b) for that purpose, to use, or continue to use, the facility;
(c) to enter and occupy land on, above or under which the facility is located, and to undertake work on that land, to maintain the facility.
48. On 29 August 2000, the Minister made a declaration under section 10(1) that all electricity distribution network facilities forming part of the ACTEW Electricity Distribution Infrastructure that are affixed to non-ACTEW land are severed from and remain severed from non-ACTEW land and vest in ACTEW.[15]
The Minister may, by notice in the Gazette, declare that assets, rights or liabilities that -
(a) are vested in ACTEW or AGL or a company that, under the Corporations Law, is a subsidiary of ACTEW or AGL; and
(b) are specified or described in the notice;
vest in 1 or more joint venture entities or in a partnership specified or described in the notice.
50. On 29 August 2000, the Minister made a series of declarations under section 11 of the PF Act, the effect of which was to vest all of the assets, rights and liabilities of ACTEW comprising the ACTEW Retail Contribution (as defined) in the Retail Partnership[16] and the assets, rights and liabilities of ACTEW comprising the ACTEW Distribution Contribution (as defined) in the Distribution Partnership.[17]
51. Mr Ogilvie's block is non-ACTEW land and the low voltage cable buried on his land is part of the electricity distribution network facilities affected by the declaration. By the several declarations made on 29 August 2000, the cable was severed from the land in which it is buried (i.e. Mr Ogilvie's block) and vested in the Distribution Partnership (via ACTEW). The rights conferred by section 10(7) of the PF Act on the corporation in which the network facility vested pursuant to the declaration made under section 11, include maintaining the cable in its present location. [18] The fact that the cable is not located in the easement is immaterial.
52. Evoenergy has made it perfectly clear to Mr Ogilvie since he first made his complaint in May 2021 that section 10(7) of the PF Act means that it is not under any legal obligation to relocate the existing low voltage cable. That is plainly correct. The tribunal does not have power to order otherwise.
53. As I observed earlier, the crux of Mr Ogilvie's latest attempt to reformulate the grounds of his claim focuses on Evoenergy's alleged failure to comply or abide by the requirements of certain acts and regulations. The statutory references that Mr Ogilvie has appended to his draft grounds of claim do not advance his cause. There has been no compulsory acquisition of his land, so references to related legislation are irrelevant. As Evoenergy did not instal the low voltage cable outside the electricity easement and is authorised by statute to require the cable to remain in its present position, references to planning laws requiring electrical infrastructure to be installed in easements are irrelevant. Fundamentally, Mr Ogilvie has failed to identify any discernible basis upon which it could be said that Evoenergy has failed to do something which is capable of giving rise to a liability in damages.
54. Further, while the earlier analysis shows that certain liabilities of Evoenergy's predecessors have been 'passed up the line' so to speak, Mr Ogilvie has not put his claim on that basis. He and his former legal representative were given ample opportunity to provide contentions of fact and law establishing the basis of a claim that Evoenergy is liable in damages for the alleged negligent acts or omissions of any of its predecessors. The deficiencies in the previous attempts to formulate a claim on that basis have been discussed earlier.
55. It is not part of the tribunal's role to make the applicant's case for him. The tribunal has provided Mr Ogilvie with ample opportunity to formulate grounds of sufficient substance to justify the tribunal allowing the matter to go to a contested hearing. I see no utility in giving him more time.
56. Nor is it justifiable for the respondent be put to the time, trouble and expense of defending a claim that patently lacks substance. To do so would not be consistent with the tribunal principles in section 7 of the ACAT Act to which I referred earlier.
57. The appropriate order in those circumstances is to refuse leave to amend the claim in accordance with the draft document filed on 12 April 2022 and otherwise to dismiss the application.
[1] Note: all errors are in the original
[2] This refers to the ACTEW/AGL Partnership Facilitation Act 2000, section 11 and the declaration by the Treasurer pursuant to section 11
[3] Specifically, section 33 - Acquisition by compulsory process and part 6 - Compensation for compulsory acquisition of interests in land
[5] Specifically, section 7 - Electricity networks; section 17 - Customers; section 20 - Other laws not affected; section 25 - General conditions; section 47 - Contravention of licence condition; part 4 - Industry codes (sections 55 and 56); division 7.2 - General powers (section 104 - Acquisition of land; section 107 - National land); division 7.3 - Performance of network operations (section 108 - Damage etc to be minimised; section 109 - Notice to land-holder; section 121 - Clarifying ownership of certain network facilities; section 122 - Effect of declaration under section 121); division 12.2 - Applications to ACAT (section 172 - ACAT applications and items 2, 5 and 6 in column 1 of Table 172; section 174 - Advising Minister etc about systemic problems); division 12.5 - Powers and decisions of ACAT (section 177 - Complainant's records; section 181 - Payment for loss or damage); division 14.2 - Territory network operations (section 231 - Installation of territory network facilities; section 233 National land; section 234 - Damage etc to be minimised; section 235 - Notice to land-holder; section 260 Compensation - safety net
[6] Specifically, the definition of 'occupier'
[7] Specifically, section 264 - Proceedings affecting title to land; section 266 - Complaints under the Utilities Act; section 266A - Civil disputes under ACT Civil and Administrative Tribunal Act
[8] This refers to the Planning and Land Management Act 1988 (Cth), section 30 - Territory liable as manager
[9] Specifically, sections 52, 53 (references to 'easement_'_)
[10] This refers to the Australian Capital Territory (Self-Government) Act 1988, section 23 - Matters excluded from power to make laws
[11] This refers to the Utilities (Technical Regulation) Act 2014, section 6 - Objects of Act; section 7 - Other laws not affected; section 11 - Technical codes - purpose; section 41F - Definitions (specifically definition of network boundary); section 53 - Network boundary
[12] Specifically, sections 6, 7, 8, 9, 11, 12, 16 and 84
[13] Document titled 'Formation of Contracts Under the National Energy Retail Law (ACT) Act 2012' dated 17 December 2021
[14] The subsection was originally numbered 10(8) but was renumbered 10(7) by A2001-44 amendment 1.8
[16] Notifiable Instrument NI2000-227 and NI2000-224
[17] Notifiable Instrument NI 2000-221 and NI2000-226
[18] See also Blazey v Icon Distribution Investments Ltd and Jemena Networks (ACT) Pty Ltd t/as ACTEWAGL Distribution [2018] ACAT 10 at [19]
OGILVIE
EVOENERGY